Two Marion County judicial candidates since 2012 — one a Republican, one a Democrat — made statements on financial disclosure forms that, if true, could violate the state's Code of Judicial Conduct.

The two described payments to their parties as "slating fees," or fees paid by candidates seeking the party's endorsement.

There's one problem: Judicial candidates are prohibited from paying slating fees. Any contribution to the party is supposed to be strictly voluntary.

Yet eight other judicial candidates described payments to their parties as "fees," "payments" or "expenses," suggesting some may have seen the payments as something other than voluntary political contributions.

An Indianapolis Star analysis of campaign documents raises questions about a long-standing practice in Marion County, where the major political parties ask judicial candidates seeking endorsement to pay $12,000 to $14,000.

Some question how voluntary such contributions really are in Marion County, where a party nomination all but ensures a seat on the bench.

"My reaction to this is, the perception is, it is kind of blood money," said Charles Geyh, professor of law at the Indiana University Maurer School of Law in Bloomington. "It is money they feel like they have to give. There isn't any meaningful alternative."

Critics say such contributions create the appearance of a pay-to-play system — one they feel is too heavily influenced by politics, veers perilously close to crossing ethical lines and could invite conflicts of interest on the bench. What's more, they argue that the state law that created Marion County's unique judicial selection system disenfranchises voters.

They contend it is time to overhaul the system to remove the influence of politics and money.

That's a goal others say is virtually unachievable.

Officials say the political parties provide a valuable service by vetting judicial candidates for voters and keeping election costs down. They argue that judicial candidates aren't forced to pay fees, and the money they do pay is used to cover legitimate election costs. The law that created the current system, in fact, was designed to limit the influence of money and politics in the selection process.

But when financial statements of people who want to be judges appear to conflict with the rules, questions inevitably persist.

'What appears to be a disconnect'

The prohibition on slating fees, and payments like them, is meant to ensure judges are independent and free of political entanglements.

"Assessments or slating fees overwhelmingly tip this balance by suggesting to the public that a judicial candidate had to buy favor with the political party in order to obtain his/her judicial seat," Adrienne Meiring wrote in a 2012 letter to two members of the committee Attorneys for an Independent Bench.

The Code of Judicial Conduct does not prohibit judicial candidates from making voluntary donations to political parties, but it does prohibit "mandated assessments," "slating fees" or "forced payments" to them, according to an advisory opinion written by the Indiana Commission on Judicial Qualifications.

When presented with campaign finance reports reviewed by The Star, Supreme Court spokeswoman Kathryn Dolan would neither confirm nor deny whether the commission planned to investigate. If judges are found to have broken the code, they could face disciplinary action.

"We acknowledge you have uncovered what appears to be a disconnect between the code and information on financial disclosure forms," Dolan said. "However, any investigation JQC may be conducting related to slating fees is confidential."

Marion Superior Court Judge Bill Nelson, the Republican who used the term "slating fees" in his campaign finance report, said his treasurer made an "innocent mistake" in how she described his political contribution. Nelson said he didn't review the report as closely as he should have before signing it.

Judicial candidate Christina Klineman, the Democrat who used "slating fees" in her financial report, previously declined The Star's request for comment. She could not be reached Friday.

But what candidates call the payments may not be the deciding factor.

Dolan said the commission evaluates several aspects of the payments to determine whether there was a violation, including whether they occurred before a slating convention, whether anyone from the political party communicated that they were expected and whether the amounts paid by all candidates of a political party were the same.

Under that criteria, all of the judges and judicial candidates who have been endorsed by the two major parties would have a difficult time explaining their contributions.

Every endorsed candidate pays

Every endorsed judicial candidate who ran on the Democratic ticket in 2012 paid at least $13,100 to the Marion County Democratic Party, a Star analysis found. Democratic candidates who were endorsed or sought endorsement for the 2014 judicial election cycle each paid $14,000.

Republicans who were endorsed for judicial office in 2012 each paid at least $13,500 to the county political party. Most paid more than $20,000. For 2014, each endorsed candidate is expected to pay the Marion County Republican Central Committee at least $12,000 "to help defray the cost of the endorsement process and the collective campaign," according to the party's standing rules.

Joel Miller, chairman of the Marion County Democratic Party, told The Star any judicial candidate endorsed by the party must pay the fee to cover the cost of the election.

Kyle Walker, chairman of the Marion County Republican Party, said the "fair share contribution" requested of candidates is voluntary and goes toward the cost of the convention and primary election. For the upcoming election, that means the Republican Party will receive at least $96,000 in such contributions — even though its endorsed candidates are running unopposed in the primary.

Walker explained the expenses by saying the party sends mailings to Republicans throughout Marion County with information on all endorsed candidates, not just judicial ones. He said there also are costs associated with "maintaining a party apparatus that is valuable for all of our candidates."

Determining whether such uses for candidates' contributions would comply with the judicial code is up to the commission.

Endorsed candidates raise money to pay party donations in various ways, some paying out of their own pockets and others from campaign donations. Some judicial candidates received donations from law firms and lawyers, which creates potential conflicts. Some of those lawyers could appear in court before the judges they helped elect.

"Trial judges are extremely important in some of the kinds of cases that affect the average person — who gets custody of the kids, marriage dissolution, ... who does or doesn't get an unusually light sentence or an unusually severe one," said Theodore Boehm, a retired Indiana Supreme Court justice who now works as a mediator. "How do you feel about a justice system that encourages and even forces judges to accept funds from any source that will help them pay these fees, when the only practical course is these lawyers who show up in the court?"

But Boehm said just the appearance of a system influenced by money can erode confidence in the judiciary and judges' decisions.

"I think there are a lot of people who would be really good judges who simply won't apply," he said.

How the system works

State legislators created Marion County's system of electing judges in 2006 to try to limit the influence of political parties, though some say it had the opposite effect.

Republicans and Democrats now can each nominate candidates for no more than half the open judicial seats. That means the two major political parties never run against each other for Marion Superior Court posts.

Since 2006, every candidate who won in Marion County's primary election ultimately took the bench. In most general elections, there are the same number of judicial candidates on the ballot as there are openings.

There may be competition within political parties during the primary election. But only two people since 2000 have beaten candidates endorsed by the parties.

Because a party endorsement is often a ticket to the bench, most candidates start their bid for party endorsement months or years before an election, attending local political functions, such as party breakfasts.

Candidates seeking endorsement receive lists of their party's ward chairmen, ward vice chairmen and precinct committee members. The people on those lists later vote via secret ballots in a convention for which candidates they'd like to endorse.

Both party officials say their focus is on qualifications over politics.

They require judicial candidates seeking party endorsement to fill out applications that request basic personal information, educational and criminal backgrounds, professional accomplishments and community involvement. The Republican packet also quizzes candidates on whether they've ever been sued or been party to a legal proceeding, whether they have paid their property taxes and filed all required tax returns.

Some of the questions hint at political motives. The Republican form also asks candidates whether they agree to avoid criticism of other endorsed Republican candidates or office holders and agree not to file as a candidate in the upcoming primary election if they don't earn party endorsement.

Miller, the Democratic county chairman, declined to provide The Star with a copy of the Democratic endorsement packet, but he said it includes many of the same candidate questions.

The contributions both parties request also are used to promote party unity. If a candidate is not endorsed at the party convention, most of the donation is typically returned — unless, that is, the candidate decides to run against the party's slate in the primary.

'Advantages in a large county'

Marion Superior Court Judge Tim Oakes, who co-teaches a seminar on judicial selection, said Marion County's current system "has the form of an election but the substance of a nominating commission" in that voters can reject candidates endorsed by the Republican and Democratic parties.

"It's not perfect ... but it has advantages in a large county," he said.

Oakes said Marion County's endorsement process also drives down the cost of judicial elections. He pointed toward the elections in Vanderburgh County, where judicial candidates spent between $34,500 and $168,000 leading up to the 2012 general election, according to local media reports.

The political parties' chairmen, Walker and Miller, both said Marion County's system is best for its residents.

"I believe this is the best system for electing judges because it requires judges to interact with people from all walks of life, (including) those they may see on the bench," Walker said. "It creates judges that are better connected to the public and puts the selection of judges in the hands of voters and not a select group that is hand-picked, as seen in other judicial methods."

'It's really robbing voters'

Party influence over the elections is just one aspect of the system that's under attack. A 2013 suit filed against Gov. Mike Pence, Secretary of State Connie Lawson and members of the Indiana Election Commission is challenging the constitutionality of the state law that limits the number of seats each party can seek.

Voters who choose not to participate in a primary election, which requires them to declare a party affiliation, have no say in who will take the bench, according to the lawsuit filed by the American Civil Liberties Union of Indiana on behalf of Common Cause Indiana. At best, those who do vote in the primary can vote for only half the judgeships in Marion County.

State officials deny the lawsuit's claims, arguing that the Indiana law is constitutional "and only imposes reasonable nondiscriminatory restrictions on voting as part of the state's important regulatory interests," court records show.

Julia Vaughn, policy director for Common Cause Indiana, said her organization advocates for elections that are "accessible, accurate, honest, fair and meaningful."

"It's really the last one — giving people a meaningful vote — where judicial elections in Marion County fall short," Vaughn said. "It's really robbing voters in Marion County here from making a meaningful choice of judge."

Appellate Judge John Baker said he personally feels the problem with Marion County's system is that it emphasizes the importance of being partisan in order to be elected.

"This is an overdramatization, but I'm of the opinion that judges shouldn't be partisan politicians," he said. "If you can tell if a judge is Democratic or Republican, I'm not real sure that person should be a judge because we don't have Republican or Democratic laws."

Baker said there are good judges on the bench in Marion County, but the judicial system as a whole could benefit from extraction from partisan politics.

The 'merits' of change

Many, including Baker, argue Marion County would be better served through a merit selection system, similar to the ones used in Lake and St. Joseph counties.

Under merit selection, a judicial nominating commission made up of lawyers and laypeople interviews applicants and recommends candidates to the governor, who makes the final decision.

Proponents of such a system include the American Judicature Society, American Bar Association, Indiana State Bar Association, Professor Geyh, retired Justice Boehm, Baker and others.

Oakes said the idea that merit selection would remove politics from judicial selection is "complete hogwash" — a sentiment echoed by others. He said the decision-making process is influenced by the politics of the commission and the ultimate decision is made by the governor, a partisan politician.

"They are political, but only for a chosen few to play in," Oakes said. "It's not purely merit."

True merit selection, he argued, would involve candidates taking tests and doing a blind draw when there is a judicial opening.

Refining the current system

Attorneys John Kautzman and Kevin McGoff, co-chairs of Attorneys for an Independent Bench Committee in the Indianapolis Bar Association, said there are ways to improve the current system.

The committee proposed guidelines for the Marion County judicial selection system, such as requiring judges to disclose when someone appearing in their courts has donated more than $500 to their election and mandating the judges recuse themselves if the opposing party requests it and the contribution was in a particular time frame.

Kautzman said the rules are designed to provide transparency and confidence that judges are making decisions based only on facts and the law.

"We advocate for rules so the average litigant knows the system is not based on money or politics," he said. "It's based on the independence of the bench."